Colette Sexton, Sunday Business Post and RTÉ

Case Number: 160398

Whether RTÉ was justified in its decision to refuse access to the salaries of certain presenters and other staff members under sections 30, 35, 36 or 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 22 March 2016, the applicant sought the following information from RTÉ:

The names of the top 20 highest earning presenters/reporters/correspondents/editors (who work in front of the camera/deliver reports on air) at RTÉ in 2014 and the amount they were paid

The total number of staff at RTÉ, excluding contractors, who were paid the following in 2014: more than €100,000; more than €150,000; more than €200,000; more than €250,000; more than €300,000

The names and salaries of the top 20 highest earning staff in 2014 who were not on air

RTÉ issued its decision on the request on 27 May 2016. In relation to part 1, it stated that the earnings of the 10 highest paid presenters for 2014 is already available on its website but it refused access to details of the next 10 highest earning presenters under sections 35, 36 and 37 of the FOI Act. In relation to part 2, it provided details of the numbers of staff falling within specific salary bands that it had previously made available in response to other FOI requests. Part 3 of the request was refused on the same grounds as part 1.

The applicant sought an internal review of the decision in respect of parts 1 and 3, following which RTÉ upheld its original decision. On 22 September 2016, the applicant sought a review by this Office of that decision.

In conducting the review, I have had regard to the correspondence between RTÉ and the applicant as described above. I have also had regard to the correspondence between this Office and both RTÉ and the applicant on the matter.

Scope of the Review

The scope of this review is concerned with whether RTÉ was justified in refusing access to (i) the names of the top 11 to 20 highest earning presenters/reporters/ correspondents and editors who worked in front of the camera in 2014 and the amounts they were paid and (ii) the names and salary details of the top 20 highest earning staff in 2014 who were not on air.

Analysis and Findings

In submissions to this Office, RTÉ relied on exemptions relating to confidentiality (section 35); commercial sensitivity (section 36); functions and negotiations of FOI bodies (section 30) and personal information (section 37). As it seems to me that section 37 is the most relevant of those exemptions, I will deal with that exemption in the first instance.

Section 37 provides for the mandatory refusal of a request if the FOI body considers that access to the records sought would involve the disclosure of personal information relating to a person other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act details fourteen specific categories of information that is personal information without prejudice to the generality of (a) and (b) above, including:

(ii) information relating to the financial affairs of the individual,
(iii) information relating to the employment or employment history of the individual, and
(v) information relating to the individual in a record falling within section 11(6)(a) (a personnel record).

Section 2 also includes some exclusions to the definition of personal information. It states that the definition does not include:

(I) in a case where the individual holds or held -

(A) office as a director of,

(B) a position as a member of the staff of, or

(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,
(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.

The Supreme Court, in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- The Information Commissioner [2012] 1 ILRM 301, (more commonly referred to as the Rotunda Case) considered the definition of personal information and found that it is sufficient for information to be captured by any one of the fourteen specific categories of information for it to be personal information. Release of the information at issue in this case would involve the disclosure of the identities of specific individuals, the amounts they were paid in 2014, and where they were placed in the list of highest earning individuals at RTÉ. It is clear that such information can be described as information relating to the employment and/or financial affairs of the individuals in question. On its face, therefore, for the purposes of the FOI Act the information sought is personal information relating to the individuals concerned, unless any of the exclusions to the definition of personal information apply.

I am aware that the former Commissioner made decisions on similar requests in 2004 (see, for example, case Nos. 000286, 000434, and 010102). In those instances, she found that the salaries of presenters who are or were providing a service for RTÉ under a contract for services were captured by the exclusions to the definition of personal information and that such information did not, therefore, constitute personal information for the purposes of the FOI Act.

However, that is not to say that the precise payments made to presenters in any specific year qualify as a term of a contract within the meaning of the exclusion. The exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public servants, or individual contractors, of the right to privacy generally. Indeed, in the cases mentioned above, the former Commissioner expressly acknowledged that precise payments that derive from some personal aspect of an individual's life comprise personal information.

Essentially, when considering the exclusions, a distinction must be drawn between the role of a staff member or contractor as a provider of a public service which is subject to oversight and the privacy rights of those same individuals regarding their private employment and financial affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as personnel files and financial affairs.

In this case, the information sought comprises payments made to certain individuals. I should explain at this stage that the list of the top 11 to 20 highest earners who work in front of the camera includes a number of individuals who were, at the time, employed on a contract basis while the remainder were salaried staff. Nevertheless, RTÉ argued that each remuneration package has been determined based on personal factors specific to the person such as previous income, position, long service, performance, or qualifications. I accept RTÉ's argument. As such, I accept that the details of the precise payments made to those individuals in any particular year relate to their personal financial affairs, regardless of the basis on which they were employed.

For this reason, I am satisfied that details of the payments the individuals received cannot reasonably be described as information relating either to the terms upon and subject to which they hold positions as members of staff or to the terms of the contracts in cases where the individuals are providing a service under a contract for services. I find, therefore, that the information sought is personal information relating to the individuals concerned as the exclusions to the definition of personal information do not apply. It follows, therefore, that section 37(1) applies.

The effect of section 37(1) is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at sections 37(2)(a), (b), (d) and (e) apply. Section 37(2)(c) serves to disapply the section 37(1) exemption where information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. I note that similar information relating to RTÉ's top ten highest earning presenters is publicly available. However, I am satisfied that those individuals do not represent a class of individuals of significant size as envisaged by section 37(2)(c).

Section 37(5) provides that access to the personal information of a third party may be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

It has not been argued that the release of the withheld information would be to the benefit of the third parties concerned, nor do I consider this to be the case. I therefore find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in the Rotunda case. It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The Act recognises a strong public interest in enhancing the openness, transparency and accountability of public bodies in the performance of their functions. On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

RTÉ argued that the public interest in how it uses public funding is safeguarded in a variety of ways. It referred to the safeguards contained in the Broadcasting Act 2009 to ensure that it fulfils its public service commitments through the use of public and commercial funding, including obligations to produce for the Minister for Communications and the Broadcasting Authority of Ireland (BAI), and to publish on a regular basis, statements of strategy, public service statements and annual statements of performance commitments. It added that the BAI also carries out regular reviews of its compliance with funding requirements and levels of funding which underpin its public service obligations. It further added that its annual report contains a detailed breakdown of its funding allocations.

RTÉ further explained that the 20 highest earning staff in 2014 who were not on air and those individuals in the list of the top 11 to 20 highest earners who work in front of the camera as salaried staff are included in the details released of the number of individuals falling within a range of salary bands. It argued that the publication of salaries by salary bands is consistent with the guidance provided by the Department of Public Expenditure and Reform in relation to the publication scheme that each FOI body must publish. The guidance advises that details of pay and grading structures should be published, except where publication would lead to the identification of individual staff members' pay, and that commercial bodies should publish the pay in appropriate bands and the number of staff in each band having regard to commercial sensitivities.

The fact that there are a number of mechanisms in place which serve to enhance the transparency and accountability of RTÉ does not, of itself, mean that no further enhancement is necessary. Nevertheless, it seems to me that the mechanisms identified by RTÉ do, indeed, serve the public interest in the promotion of transparency and accountability in relation to its salary expenditure. The question I must consider, therefore, is whether the public interest in further enhancing that transparency and accountability by releasing the information sought in this case is sufficiently strong to outweigh, on balance, the privacy rights of the individuals to whom the information relates. In my view, it is not. I do not consider that the release of individual salary details would result in a significant further enhancement of transparency and accountability. On the other hand, I consider that release would involve a significant breach of the privacy rights of the individuals concerned.

I am conscious of the fact that RTÉ has published details of the salaries of the top 10 presenters in 2014. However, it argued that it did so in accordance with a commitment made by the Director General to the Oireachtas Joint Committee on Communications, Energy and Natural Resources. In any event, this does not mean that the privacy rights of the individuals concerned in this review are in any way diminished. Having carefully considered the matter, I find that the public interest that the request should be granted does not, on balance, outweigh the right to privacy of the individuals to whom the information relates and that section 37(5)(a) does not apply.

As I have found that section 37(1) applies to the information at issue, it is not necessary for me to go on to consider the additional exemptions relied upon by RTÉ.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of RTÉ to refuse access to the names and salary details of the top 11 - 20 highest earning presenters/reporters/ correspondents and editors who worked in front of the camera in 2014 and to the names and salary details of the top 20 highest earning staff in 2014 who were not on air on the ground that the information sought is exempt under section 37 of the FOI Act

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.